The main objective of the case brought by the Council for the Advancement of the South African Constitution (Casac) is to challenge the conversion of Permission to Occupy (PTO) certificates, or informal land rights, into long-term leases issued by the Ingonyama Trust (IT) and Ingonyama Trust Board (ITB).
King Zwelithini is the sole trustee of the Ingonyama Trust and seeks to hold and administer all the Zulu nation’s land on behalf of the people who live on it.
In a press statement released by the Legal Resources Centre, (LRC), which is acting for Casac, the applicants argue “that the conversion of existing land rights into leases will undermine the tenure security of the people affected”.
The LRC says that while existing land rights, though informal, are indefinite, the leases proposed by the Ingonyama Trust are for a fixed period of time.
And the leases come with obligations including annual rent, which goes up by 10% a year, a requirement to fence all land and an obligation to ask permission from the trust to develop land or buildings.
Anyone who does not pay the rental could lose their land and the improvements they have made. Most of the individual applicants in the case are women, which suggests they have been most adversely affected by the leases.
For women in particular, the lease process further amplifies their alienation from their land because the internal contestations of how land is owned, through PTOs or leases, are in part minute pieces of the broader struggles of women’s land rights, continuously being marginalised by local and governmental institutions.
Everyone, regardless of gender, is pressured to accept leases, but the focus on women emphasises that women, who have been deeply “invisibilised” from the land conversation, have emerged as the bravest. The decision to participate in a case in such a volatile province as KwaZulu-Natal is dangerous.
One of the applicants in the case, Linah Nkosi from Jozini, in the northern part of KZN, said her reason for participating in the case was to protect her right to the land she farms. She does not want to lose her land because she cannot afford to pay the stipulated R1680 annual rent, which comes with a 10% annual increase.
She is unemployed and, with several mouths to feed in her household, her land is her livelihood. She grows vegetables in her ploughing field, and as a 62-year-old long-term resident of her community, she believes that she should not be paying for land where she has undergone customary practices that solidify that the land belongs to her.
This abrogation of women’s land rights is further highlighted by the desire of the second institutional applicant to part take in the case.
The Rural Women’s Movement (RWM) is a non-profit, grassroots organisation founded in 1998. It “works to give a voice to rural women in KwaZulu-Natal, and to address the social problems that rural women face, including access to land and land ownership”.
A supporting affidavit by the director of RWM, Sizani Ngubani, provides further factual and legal justification for the relief the applicants seek.
She says: “I remember a workshop in the Zululand district in which different women complained of receiving accounts for rent they simply could not pay.
“One woman complained that the Ingonyama Trust had denied her permission to build a garage for a car on her own property now that they held a lease over it. Most of them are struggling to make a living and simply cannot afford the rental amounts demanded.”
The hope for this case is to bring about accountability for the systematic abuse of power and privilege by the Ingonyama Trust Board.
The board continues to argue that a lease is an “upgrade” of the PTO rights, more consistent with the customary law rights in land and more economically sustainable.
But the argument made by Casac and the women for whom it is acting is that leases make tenure more vulnerable, with continued occupation largely at the whim of the trust.
Perhaps the board should rather stop violating the moratorium imposed by the Department of Rural Development and Land Reform portfolio committee on March7, and stop issuing leases. Instead, the trust and its chairperson, former judge Jerome Ngwenya, continue to promote leases and to justify the conversion of PTOs and customary land rights to leases by linking the PTOs to apartheid practices of racially based land tenure.
The board should be developing a concrete and clearly beneficial PTO to lease conversion policy alongside the department and as compelled by the committee on March7 and further emphasised on April18.
It should be holding workshops that educate traditional leaders and traditional communities about land rights, land management and land ownership.
The ITB should shift its resources from mobilising amabutho, hosting izimbizo with amakhosi to rather educating rural citizens about various ways in which the Constitution strengthens and protects their security of tenure by upgrading their rights.
Sihlali is a researcher at UCT’s Land and Accountability Research Centre.